Appendix – pleas ptas summary
The recognized pleas are not guilty, guilty, guilty by exceptions, guilty by exceptions and substitutions, and guilty to a named lesser included offense. The plea of guilty to a named lesser included offense was created to bring pleas in line with the change to RCM 918 (gave the MJ authority to find an accused guilty of a lesser included offense). An accused can also enter a conditional plea with the consent of the GCMCA and approval of the MJ. An accused cannot enter a plea of nolo contendre or plead guilty to a capital offense when there is a possibility of finally receiving a death sentence. A plea waives appellate review of all defects not raised at trial which are neither jurisdictional nor tantamount to a denial of due process. Motions waived include: suppression of confessions, evidentiary motions, and speedy trial motions based on RCM 707. Motions not waived include, inter alia , multiplicity motions that are not facially duplicative, unlawful command influence, and ineffective assistance of counsel. MJs are responsible for ensuring the providence of a plea. The accused’s plea must be knowing, intelligent, and voluntary, and have a basis in fact to survive appellate review. MJ ensures this through Care Inquiry. The Care Inquiry consists of arraignment and the providence inquiry. During the providence inquiry, the MJ must inform the accused of the elements of the offense using the Benchbook , that a plea admits the elements of the offenses, that the accused knowingly waives constitutional rights, communicate the maximum sentence that could be imposed, and secure a factual basis in the accused’s words to support the plea. MJs must be careful to ask open ended questions of the accused during the providence inquiry rather than conducting a cross examination. A cross examination type inquiry might invalidate the plea on appeal on the basis that the MJ forced the guilty plea. The MJ must also be careful to clearly explain the elements from the Benchbook and also in plain language so the accused understands them. The MJ should also examine and discuss the stipulation of fact with the accused. An accused need not personally recollect a crime in order to successfully plead. The MJ should inform the accused that the providence inquiry will be used to determine an appropriate sentence. This use of the inquiry is permissible as long as the accused is aware of its potential use. The accused’s providence inquiry cannot be used in a mixed plea case to prove a contested greater offense (e.g., pleads guilty to the lesser included offense of wrongful and Gov’t seeks to prove larceny), nor can the providence inquiry for one charge be used to prove a separate charge. When an accused enters mixed pleas, the accused will have the option, under RCM 913, to inform the court members of an earlier guilty plea. The exception to this rule is if the accused pleads to a lesser included offense and the Gov’t intends to prove the greater offense. MJs must inquire into the propriety of PTAs as part of the entire in-court plea process. A military judge must intervene when an accused asserts any degree of force or Gov’t overreaching in negotiating or approving a PTA. A term that deprives an accused of a constitutional due process right cannot be part of a PTA. This includes waiver of speedy trial, jurisdiction, counsel, due process, complete sentencing proceedings, and inclusion of sub rosa agreements. Permissible terms include waiver of a members trial, promises of restitution, reasonable probation, and waiver of accusatory stage unlawful command influence. US v. Weasler has spurred the introduction of novel terms that require a high degree of scrutiny.